The activities of CNCE in the field of posting of workers in the interest of companies and workers of the construction sector
The construction sector has always featured a significant mobility of the labour force compared to other economic sectors, due to its artisanal essence.
In a view to prevent international mobility to trigger a downward competition on working conditions, a set of rules apply to workers temporarily employed abroad.
In case of ‘posting’ of workers to perform a service abroad, European legislation entails specific communication duties towards the authorities of the country of destination, and to comply with the provisions therein applicable concerning remuneration and other matters defined in the European Directive 96/71/EC, as modified by Directive EU 2018/957, as long as more favourable for the worker.
These provisions include the registration at the Italian sectoral fund for holiday pay and other benefits for construction workers active in the place of works (‘Cassa Edile’ or ‘Edilcassa’) in case of posting to Italy for construction works by a company established abroad. Similarly, Italian companies sending workers abroad are usually required to register at the sectoral funds therein active, if in place.
In this respect, in a view to simplify existing procedures, in 2008 CNCE signed bilateral agreements with similar institutions active in Austria (BUAK), France (UCF, now renamed as CIBTP), and Germany (SOKA-BAU), followed in 2017 by an analogous agreement with the Cassa Edile di San Marino.
In case of posting, companies covered by these agreements can obtain the exemption from the registration at the sectoral fund of the country of destination, continuing to pay and remaining registered at the sectoral fund of the country of origin. This is made by submitting a declaration to the sectoral fund in the country of origin before the beginning of the posting period and upon verification of regularity of payments therein due.
Thanks to a structured cooperation between the sectoral funds of the covered countries, these agreements guarantee effective means to reduce administrative burden on companies, as well as the risk of double payments for indemnities having similar scope and value.
At the same time, workers can remain attached to the sectoral fund of their country, avoiding the risk of losing important rights. For instance, in Italy, the so-called APE, an annual indemnity paid out by sectoral funds and linked with the seniority in the construction sector, is granted only upon achievement of a minimum amount of worked hours subject to payment to Casse Edili/Edilcasse.
The topic of the international mobility of workers is also at the core of several research projects coordinated by CNCE, enabling the development of mutual learning, research, and cooperation activities with research centres, sectoral funds and paritarian institutions, and social partners from more than 10 European countries. To know more, visit the Project section of the web-site (in Italian), or access directly the projects’ web-sites in English from the links at the bottom of the page.
If you wish to know more about rules, rights and procedures affecting posting in the construction sector, please have a look at the links and FAQ available below. You can find the same contents in the shape of a handy guide at this link.
Your Europe: Information portal of the European Union addressing posting, including links to the national web-sites on posting developed by authorities of EU Member States.
Italian national web-site on posting: The national web-site developed by the Ministry of Labour and Social Policies with information useful for companies posting workers to Italy.
Constructionworkers.eu: Web-site developed by the European Federation of Building and Woodworkers (EFBWW) providing schematic information in more than 30 languages about the terms and conditions or work applicable in the construction sector across EU and in some extra-EU countries.
Soka-Bau – Europe: The web-page of the German sectoral fund for construction workers addressing workers and companies seeking for information on posting to Germany.
ELA: The web-site of the European Labour Authority, tasked with support to cooperation among EU Member States in the domain of labour inspections and coordination of social security, as well as with the supply of information on rights and duties of workers and companies in case of posting abroad.
General Directorate of Employment, Social affairs, and Inclusion: Web-page of the European Commission on EU-level policies concerning: labour, social protection and workers’ mobility.
EFBWW – European Federation of Building and Woodworkers
FIEC – European Construction Industry Federation
EBC – European Builders Confederation
AEIP – European Association of Paritarian Institutions
FAQ – Useful information for workers and companies:
- GENERAL INFORMATION
What does posting mean?
Under Directive 96/71/EC (as amended by Directive EU 2018/957) and Regulation (EC) 883/2004, the notion of ‘posting of workers’ is used to define rules applicable in case of temporary mobility of workers in the framework of a provision of services in the European Union.
Requisites for posting are the existence and the prosecution of an employment relationship between an employer, to be normally established in a EU Member State (sending undertaking), and an employee therein habitually employed, who is sent to a company established in another EU Member State (host undertaking) to provide a service for a limited period. The two companies shall be linked by a contractual relation (for instance in case of subcontracting of works), by participation in the same group, or by a contract for the provision of temporary work, in case of posting by a temporary work agency.
As a rule, posted workers remain attached to the social security institutions of the sending country, but they have right to the remuneration defined in legislation and in collective agreements of the country where they temporarily go to work (referred to as the country of destination or the ‘host country’). They have also right to the application of protections there entailed under several matters, if more favourable, including:
a) maximum work periods and minimum rest periods;
b) minimum paid annual leave;
c) remuneration, including overtime rates, and excluding supplementary occupational retirement pension schemes;
d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
e) health, safety and hygiene at work;
f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
g) equality of treatment between men and women and other provisions on non-discrimination;
h) the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work;
i) allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons.
In Italy, applicable rules are defined in Legislative Decree no. 136/2016 and following amendments (here the consolidated version in Italian). By implementing a faculty entailed by Directive 96/71/EC, national legislation entails, among others, a stronger protection for workers posted by temporary work agencies, who shall be granted the same treatment of workers in force at the host undertaking performing similar tasks.
In addition, pursuant to Legislative Decree no. 104/2022, implementing Directive EU 2019/1152, the employer shall inform workers posted abroad in writing and before the beginning of posting on: changes affecting the employment relationship; the country/ies of destination and the expected length of work; consequent additional benefits and changes in the remuneration; the currency of payments; specific indemnities for posting and modalities of reimbursement of travel, subsistence and accommodation expenses; conditions for repatriation (if entailed); address of the institutional web-site on posting of the host country.
Which declarations shall be made to public authorities?
In case of posting, companies must submit a preliminary declaration before the beginning of works abroad to the authorities of the host country. In line with Directive 2014/67/EU, this declaration includes details necessary to identify the company and workers involved, the place of works, and other complementary information. Following the principle of freedom to provide services in EU, this declaration is not subject to any formal authorisation.
At this web-page, you can find the national web-sites on posting, usually available at least in English language, and where information on working conditions, useful contacts and templates of the declaration can be found.
Furthermore, in order to certify compliance with the minimum criteria necessary for maintaining affiliation in the sending country during works abroad as per Article 12 of Regulation (EC) 883/2004, companies must ask the release of the ‘A1 form’ to social security authorities of the sending country, possibly before posting.
You can find the competent authority for each EU country, as well as for other countries covered by the regulation (Iceland, Liechtenstein, Norway, United Kingdom, and Switzerland) in this file.
It is possible to remain affiliated with social security authorities of other non-EU countries on the basis of existing bilateral agreements, available for Italy at this link (in Italian).
In other residual cases, for instance in case of posting from other non-EU country or in case of posting lasting more than the length of 24 months entailed by Article 12 of Regulation (EC) 883/2004, workers shall be affiliated as a rule to social security authorities of the host country (INPS and INAIL in the case of Italy).
What is the maximum duration of posting?
According to Directive EU 2018/957, the requisite of ‘limited duration’ of posting shall be assessed on the basis of the actual circumstances, for instance in the light of the nature of the implemented activities, or of the assumption that the worker will resume activities in the sending country after the completion of the service abroad.
Anyhow, Directive EU 2018/957 introduced a specific limit to the application of the host country’s labour legislation only for selected matters. According to the new rules, in case posting exceeds 12 months (so-called ‘long-term posting’), posted workers are entitled to the full set of labour law applicable in the host country, net of procedures, formalities and conditions for the conclusion and termination of the employment contract (including non-competition clauses), and of supplementary occupational pension schemes. Upon a motivated notification to the authorities of the host country, the sending undertaking can postpone the application of long-term posting rules up to a maximum of 18 months from the beginning of posting.
Instead, for what concerns social security, article 12 of Regulation (EC) 883/2004 entails affiliation to the social security institutes of the sending country in case the expected duration of posting does not exceed 24 months, as long as workers are not sent to replace other personnel. Upon request, the competent authorities of the sending and of the host countries can agree on longer periods in the interest of concerned persons (article 16).
Finally, in terms of taxation of posted workers’ remuneration, relevant information shall be sought in bilateral conventions to avoid double taxation. Usually, these agreements adopt the so-called 183-days rule, which maintains taxation in the sending country provided the period spent abroad does not exceed 183 days over a taxable year. You can find the conventions entered by Italy here.
Which other procedures apply for workers from third countries?
Posting of a third country citizen (i.e., non-EU national) to Italy is allowed upon request of ‘nulla osta’ to the ‘Sportello Unico per l’immigrazione’ of the local Prefecture office (more information is available here, in Italian). In case the third country worker has already a valid work permit in another EU country, the company can avail of a simplified procedure by submitting the M2 form.
Which support can workers and companies access in the host country?
Directive 2014/67/EU set forth several measures to facilitate access to information on posting and enforcement of related protections.
In particular, the European Union asked Member States to implement multilanguage national web-sites on posting and to appoint a contact person in their Liaison Offices to handle requests of information.
Furthermore, the Directive ensures the possibility for posted workers to start proceedings via the responsible administrative and judicial bodies of the host country, even after the end of posting. In addition, in case of dispute, the parties can choose to be represented by a trade union or by an employers’ organisation of the host country.
You can find references to useful sources and contacts in the ‘Useful links’ section above.
Among others, we suggest the web-site www.constructionworkers.eu, hosting information on protections and trade unions of the construction sector of different EU countries, and the web-sites of the European social partners of the construction sector, where it is possible to find the main social partners active at Member State level.
We also advise to contact trade unions/employers’ organisations of the sending country to seek for possible dedicated information and counselling services.
Which are the main sanctions entailed in case of breach of legislation on posting?
According to European rules (Directive 2014/67/EU), host country authorities shall sanction the failure to submit the preliminary declaration of posting. For what concerns companies posting to Italy, Legislative Decree no. 136/2016 set forth a sanction ranging between € 150 and € 500 per concerned worker (article 12).
Beyond sanctions applying to the sending undertaking for violations of terms of employment applicable in Italy, the client, the host undertaking, and possible other intermediate subjects in the subcontracting chain are bound to joint liability clauses in case of failure to pay social security contributions and remuneration, therefore including contributions to sectoral funds (article 4, comma 4).
In case of non-genuine posting (article 3), for instance making use of letterbox companies, the Italian legislation imposes the host undertaking to hire the posted worker. In addition, a sanction targets both the sending and the host undertaking for an amount equal to € 50 for each concerned worker and for every day of work, and, anyway, for a total amount between € 5,000 and € 50,000. In case posting is implemented with the purpose of circumventing protections granted by law or by collective agreement, this sanction is increased by € 20 per each worker and per each covered day (so-called fraudulent labour intermediation – article 38 bis of Legislative Decree no. 81/2015).
- POSTING AND RELATIONSHIPS WITH THE SECTORAL FUNDS OF THE CONSTRUCTION SECTOR IN EUROPE
What are sectoral funds for construction workers?
In Italy, as in other European countries, like Austria, Germany and France, a system of intermediation of construction workers’ wages is in place by means of sectoral funds, thought to guarantee income stability despite the temporariness of contracts in the sector or sudden interruption of work due to adverse weather conditions.
Net of some differences in their territorial organisation, governance model and benefits, these sectoral funds manage, via payments made by employers, some elements of remuneration, like holiday pay and thirteen month pay, as well as benefits and services for covered workers, like care services and opportunities of vocational training.
What are Casse Edili/Edilcasse and CNCE?
As far as Italy is concerned, starting from 1946 a network of sectoral funds for the construction sector has been established, inspired by the local experience of the sectoral fund of Milan, founded back in 1919.
Nowadays, the network is present throughout the country with 113 funds active at local level and managed by social partners on a paritarian basis. These paritarian organisations are called Casse Edili or Edilcasse, depending on the governance structure.
CNCE is the national paritarian organisation tasked of guidance, monitoring, and coordination of Casse Edili/Edilcasse. It cooperates with similar funds active abroad, and, pursuant to Italian legislation, it manages tools to tackle undeclared work in collaboration with different public institutions.
Casse Edili/Edilcasse administer several wage elements targeting construction workers, including holiday pay, seniority pay, thirteen month pay, as well as contributions to vocational training schools (Scuole Edili), where it is possible to attend courses on occupational safety and health necessary to work in the sector, to complementary pension funds (Prevedi, Previdenza Cooperativa and Fondapi), and to the sectoral complementary health fund Sanedil.
The duty upon companies operating in the construction sector to register at and contribute to Casse Edili/Edilcasse is enshrined in the sectoral collective agreements (CCNL), as well as in subsequent pieces of legislation and by-laws, which acknowledged most of their benefits as part of remuneration and their functions in terms of social protection and assistance. For what concerns foreign undertaking posting workers to Italy, the duty of registration at Casse Edili/Edilcasse is enshrined directly in article 4 of Legislative Decree no. 136/2016, and later amendments, entailing the application of sectoral and territorial collective agreements signed by trade unions more representative at national level for matters to be aligned with Italian provisions, including remuneration.
The Ministry of Labour and Social Policies confirmed this principle with the answer to request 24/2007 of 3 September 2007.
Later on, the Memorandum of Understanding signed by the Ministry and by social partners of the construction sector on 9 April 2014 reiterated the duty for foreign companies operating construction works in Italy to register their workers to the sectoral fund and contribute to the latter. At the same time, the Memorandum recognised the entitlement of CNCE to sign exemption agreements with foreign sectoral funds provided: (i) the exemption is reciprocal and (ii) workers benefit from similar protection in the sending country.
To know more on bilateral agreements signed by CNCE, you can see this short report.
In case of posting to Italy, when is registration at the sectoral funds Cassa Edile/Edilcassa due?
Registration at Cassa Edile/Edilcassa is due for all blue-collar workers falling within the construction sector, as per the Italian sectoral collective agreements (so-called CCNL), and regardless of the duration of posting.
Please, find contacts of the Cassa Edile/Edilcassa competent in reason of the actual place of works at this link. Companies can reach the fund to request the necessary registration forms. Workers can contact the fund for information on the offered benefits and services.
Companies paying similar contributions to sectoral funds active in Austria (BUAK), France (CIBTP), Germany (SOKA-BAU), and San Marino (Cassa Edile Sammarinese) can avail of a reciprocal procedure of exemption by contacting their fund in the country of origin before the beginning of the posting period. The absence of irregularities in due contributions is a precondition for the exemption to apply.